United States Court of Appeals
For the First Circuit
No. 13-1504
ISMAEL CHARUC,
Petitioner,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Selya, Circuit Judge,
and Hillman,* District Judge.
Sarita Rivera-Sasa and Rivera Sasa Immigration Law Offices on
brief for petitioner.
Stuart F. Delery, Acting Assistant Attorney General, Civil
Division, United States Department of Justice, David V. Bernal,
Assistant Director, Office of Immigration Litigation, and Yedidya
Cohen, Trial Attorney, Office of Immigration Litigation, on brief
for respondent.
December 6, 2013
*
Of the District of Massachusetts, sitting by designation.
SELYA, Circuit Judge. Petitioner Ismael Charuc, a
Guatemalan national, seeks judicial review of a final order of the
Board of Immigration Appeals (BIA) refusing to reconsider a
previous denial of a motion to reopen. After careful
consideration, we conclude that we lack jurisdiction over the
claims asserted in the petition.
The genesis of this petition is easily traced.
Petitioner entered the United States without inspection in 2001.
On September 23, 2007, local authorities arrested him for driving
under the influence of alcohol and driving without a license.
These infractions brought him to the attention of the Department of
Homeland Security, which instituted removal proceedings against
him. See 8 U.S.C. § 1182(a)(6)(A)(i).
The petitioner initially appeared pro se in the
immigration proceedings but later obtained counsel and submitted
applications for withholding of removal, protection under the
Convention Against Torture, and (alternatively) post-hearing
voluntary departure. An immigration judge (IJ) held a hearing on
June 15, 2009. The petitioner conceded removability but pressed
his cross-applications for relief. The IJ found the petitioner's
testimony to be incredible. Consequently, she denied all of his
requests for relief.
The petitioner filed a timely appeal with the BIA. On
April 27, 2011, the BIA dismissed that appeal. The petitioner
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filed a timely motion to reconsider the dismissal and, on December
2, 2011, the BIA denied that motion.
More than eight months elapsed without any further
activity. Then — on August 24, 2012 — the petitioner moved to
reopen to allow him to apply for pre-hearing voluntary departure
pursuant to 8 U.S.C. § 1229c(a)(1). The motion was filed beyond
the time allotted by the applicable regulation, see 8 C.F.R.
§ 1003.2(c)(2), and was therefore addressed to the BIA's sua sponte
authority to reopen, see Matos-Santana v. Holder, 660 F.3d 91, 94
(1st Cir. 2011). On December 27, 2012, the BIA denied the motion,
concluding that the petitioner had not established that "sua sponte
reopening to allow the [petitioner] to pursue pre-hearing voluntary
departure [was] warranted."
The petitioner filed a timely motion to reconsider this
denial. See 8 C.F.R. § 1003.2(b)(2). On March 25, 2013, the BIA
refused reconsideration. This petition for judicial review
followed.
In immigration proceedings, motions to reopen are
authorized under 8 U.S.C. § 1229a(c)(7). Apart from certain
specific exceptions (none of which applies here), a motion to
reopen must be filed within 90 days of the date of entry of a final
administrative order of removal. See id. § 1229a(c)(7)(C)(i). But
notwithstanding the narrowness of this window, the BIA possesses a
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modicum of sua sponte authority to reopen immigration proceedings.
See 8 C.F.R. § 1003.2(a).
In the case at hand, the order of removal became final on
April 27, 2011 (when the BIA dismissed the petitioner's appeal from
the IJ's decision). See 8 U.S.C. § 1101(a)(47)(B)(i). It follows
inexorably that the petitioner's motion to reopen, which was not
filed until more than a year after the order of removal became
final, invoked only the BIA's sua sponte authority.
Had the petitioner sought judicial review of the BIA's
refusal to exercise its sua sponte authority to reopen his case, we
would have been without jurisdiction to entertain his importunings.
After all, it is settled beyond hope of contradiction that "the
decision whether to exercise this sua sponte authority is committed
to the unbridled discretion of the BIA, and the courts lack
jurisdiction to review that judgment." Matos-Santana, 660 F.3d at
94; accord Neves v. Holder, 613 F.3d 30, 35 (1st Cir. 2010) (per
curiam).
Moreover, this petition is at yet a further remove.
Rather than petitioning for review of the BIA's denial of his
motion to reopen, the petitioner filed an unsuccessful motion for
reconsideration. He now seeks judicial review of the denial of
reconsideration. This attempted end run around the jurisdictional
obstacle does not improve his position.
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At least in the absence of special circumstances, we
think it virtually unarguable that when an appellate court lacks
jurisdiction to review an agency's denial of particular relief, it
must also lack jurisdiction to review the denial of a motion to
reconsider the failure to grant that relief.1 We so held in
Mehilli v. Gonzales, 433 F.3d 86 (1st Cir. 1995), in which we
refused to allow a limitation on jurisdiction to be
"circumvent[ed]" by the filing of a motion to reconsider. Id. at
92-93. This holding comports with the great weight of authority
elsewhere. See, e.g., Rangel-Perez v. U.S. Att'y Gen., 523 F.
App'x 671, 672 (11th Cir. 2013) (per curiam); Cruz-Mayaho v.
Holder, 698 F.3d 574, 576-77 (7th Cir. 2012); Jean v. Gonzales, 435
F.3d 475, 481 (4th Cir. 2006); Durant v. INS, 393 F.3d 113, 115 (2d
Cir. 2004); Belay-Gebru v. INS, 327 F.3d 998, 1000-01 (10th Cir.
2003). But see Averianova v. Holder, 592 F.3d 931, 934-35 (8th
Cir. 2010). We hew today to the line drawn in Mehilli.
1
Some courts have eschewed any hard-and-fast rule and
asserted jurisdiction in special circumstances. Those courts have
suggested, for example, that jurisdiction might attach where the
challenged action undermines the statutory scheme, or where the
unreviewable relief is coupled with a reviewable request for
relief, or where the reconsideration does not require the court to
address any discretionary grounds relied on by the BIA. See Calma
v. Holder, 663 F.3d 868, 876-77 (7th Cir. 2011); Fernandez v.
Gonzales, 439 F.3d 592, 602-03 (9th Cir. 2006); Obioha v. Gonzales,
431 F.3d 400, 406-08 (4th Cir. 2005). Because this case presents
no special circumstances, we have no occasion to explore these
exceptions.
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In a clumsy effort to blunt the force of this analysis,
the petitioner claims that the 90-day deadline for motions to
reopen should have been equitably tolled and that, therefore, his
motion to reopen should have been considered timely. In the
petitioner's view, the IJ's failure to comply with her duty to
inform him of his possible eligibility for pre-hearing voluntary
departure, see 8 C.F.R. § 1240.11(a)(2), warrants tolling — and the
effect of such tolling justifies the assertion of jurisdiction.2
This claim is hopeless. When the petitioner filed his
motion to reopen, he did not assert an entitlement to equitable
tolling. It was only in his motion to reconsider the denial of the
motion to reopen that he vaguely asserted, albeit inartfully, that
he might be entitled to equitable tolling. But the ground on which
the claim for equitable tolling rested — that the IJ blundered by
failing to inform him of his apparent eligibility to apply for pre-
hearing voluntary departure — was a dead letter; that is, it was a
ground that had been raised and rejected more than a year before.
The basis for the equitable tolling claim was, therefore, resolved
prior to the filing of the motion to reopen and could not alter the
jurisdictional calculus.
2
There is an unsettled question in this circuit about whether
equitable tolling can apply at all to the time limit specified for
motions to reopen. See Bolieiro v. Holder, 731 F.3d 32, 39 (1st
Cir. 2013) (recognizing that this court has "not yet decided
whether equitable tolling applies to the . . . ninety-day
deadline"). We have no occasion to answer this question today.
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We need go no further. For the reasons elucidated above,
we dismiss the petition for judicial review.
So Ordered.
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